April 23, 2003

Applying for Visas as a Third Country National

As we all adjust to the changes and transformations being implemented at the Department of Justice (DOJ), the Department of State (DOS) and the new Department of Homeland Security (DHS), we (including those who have been working within these departments for years) eagerly await the disclosure of new standards and guidelines from these departments which are a culmination of each agency’s efforts to improve our country’s grasp on immigration in the U.S., and its impact on security at our borders as well as its impact on peace of mind within our borders.

One of the most pressing issues in all of these transformations and in the reorganization plan is who will be responsible for directing visa issuance policy and authority. Pursuant to Section 428 of the Homeland Security Act, the authority to issue visas is vested in the "Department of Homeland Security." This function is removed from the Department of State. In light of this section, the Department of State and the Department of Homeland Security are expected to issue a Memorandum of Understanding explaining the changes and division of authority. This memorandum indicates an apparent ongoing discussion between the departments in an effort to determine how this authority will be exercised.

After much speculation as to which bureau under the DHS would assume the visa issuing function, it is now rumored that a new agency, the Office of International Enforcement (OIE) will have final responsibility for issuing visas and that the new OIE will place officers at overseas post to oversee the visa issuance functions. The scope of their role may be limited to reversing approvals of visas issued by consular posts. The specific implementation of this new role and standards are yet to be disclosed, perhaps due to the fact that they have not yet been generated.

While we await these much anticipated changes, the consular posts currently working directly under the discretion of the Department of State. In general, before applying for a visa it is strongly recommended that you continue to review consulate websites on standards and application procedures. To that end, below is an update on recent changes in the processing of Nonimmigrant Visa applications at consulates and embassy’s in Canada and Mexico as they relate to Third Country Nationals. GT will continue to provide updates on changes at the posts as well as the more fundamental changes in structure and function of the governing organizations.

Border Posts and Third Country Nationals

According to the Department of State (DOS), third country nationals (TCN) who are in the U.S. may apply for nonimmigrant visas at border posts if they are applying for a visa in the following categories: B, E, F, H, J, K, L, M, O, P, Q, R, V. There are two exceptions to this general standard:

1. Applicants from any of the seven "states sponsors of terrorism" which include Cuba, Iran, Iraq, Syria, Sudan, North Korea, and Libya are not eligible.
2. Any individuals who are subject to any of the other Special Processing Requirements imposed after September 11, 2001.

DOS Clarification as to Types of Stateside Visas Canadian/Mexican Posts May Accept

Mexico

1. Matamoros, Nogales, and Nuevo Laredo:
   • Accept NIV applications from U.S. based TCNs in all categories except B, E, K, and V.
   • In some instances, these posts accept E visa cases after a review of documents submitted in advance.
2. Nueveo Laredo:
   • All NIV services have been temporarily suspended since January 29. The Consulate plans to reopen as soon as possible.
3. Ciudad Juarez:
   • accepts NIV applications from U.S. based TCNs only in the F-1 category for continuing students in a full-time degree program who can demonstrate that their initial F-1 or B-2 Prospective Student visa was issued in their home country.
   • Plans to resume processing of some nonimmigrant visas for TCNs. The consulate plans to re-open TCN processing for all types of visa renewals for which the initial visa was issued in the home country, as well as for TCN applicants who obtained a change of status from BCIS (formerly INS) from one nonimmigrant class to another, unless that initial class was B-1 or B-2.
   • Ciudad Juarez WILL process those who arrived in the U.S. with a B1/B2 visa with a "prospective student" annotation, but will NOT process those who seek to change to another nonimmigrant status from an un-annotated B or who arrived in the U.S. with a B visa with no annotation and later obtained a change to another nonimmigrant status.
   • For workload reasons, it does not intend to process E applications, nor will it accept cases with "special processing requirements".
   • Will begin allowing applicants to make appointments in the near future, probably sometime in April. Generally, appointments must be made two weeks in advance.
4. Tijuana:
   • Accepts NIV Applications from U.S. based TCNs in all categories, except E visas.

Canada

1. Calgary:
   • Accepts NIV applications from U.S. based TCNs in all categories except E, K and V.
2. Halifax:
   • Accepts NIV applications from U.S. based TCNs only in the B, F, and G categories.
3. Montreal:
   • Accepts NIV applications from U.S. based TCNs only in the B, F, H, J, L, O, P, and R categories.
4. Ottawa:
   • Accepts NIV applications from U.S.-based TCNs in all categories except E and V.
5. Quebec:
   • Accepts NIV applications from U.S.-based TCNs only in the B, F, J, M, and R categories.
6. Toronto:
   • Accepts NIV applications from U.S.-based TCNs in all categories except K and V (Note: While not listed, Toronto does not accept TCN E's).
7. Vancouver:
   • Accepts NIV applications from U.S.-based TCNs in all categories except E, K, and V.